The Department of Home Affairs is a reality, pigs can fly, and Australia is getting a Modern Slavery Act

By Nick Parker

Last Federal Budget, the Big Four banks declared a whopping combined profit of approximately AUD$15 Billion, and the Australian Government felt obliged to introduce a bank levy. In 2012, the global slave trade was valued at AUD$187 Billion, and the Australian Government did nothing; until now.

Another Budget on, Canberra returns to its trademark and quintessential irrelevance, and the rest of Australia continues to debate in earnest everything from tax offsets to infrastructure spending – how joyous. Nevertheless, this author (and resident politics nerd) took it upon themselves to dig a little deeper, and stumbled upon an interesting communique from none other than the Department of Home Affairs:

“The Turnbull Government will harness the power of big business to help combat modern slavery, through the establishment of a Modern Slavery Reporting Requirement. The reporting requirement, which will be enacted through a new Australian Modern Slavery Act, will require more than 3,000 large corporations and other entities to publish annual public statements on their actions to address modern slavery in their supply chains and operations.

Putting aside the sure-fire theatrics of Peter Dutton forcibly harnessing Ian Narev and conscripting him to fight against slavers, the promise of Modern Slavery reporting requirements sounds like a potentially interesting one for those concerned with international affairs (or a heart, for that matter). But what actually is it?

Well, to rewind 12 months, the Parliamentary Inquiry into Establishing a Modern Slavery Act in Australia was entering its final scheduled public hearings. Comprising of thirty Parliamentarians, including representatives of both major parties in the Senate and the House of Representatives, the Committee eventually published a report titled ‘Hidden in Plain Sight’. It was unclear whether this was a reference to the new fencing and scaffolding surrounding that now envelope the Australian Parliament House, or to modern slavery, but it did seem to note that before understanding what a Modern Slavery Reporting Requirement is, Canberra first had to start contemplating what ‘modern slavery’ actually means.

It is easy to fall into the trap of thinking slavery is an issue confined to history books, or at the very least unanimously condemned in our society, but this could not be further from the truth. Not convinced? Put it this way; if you considered the population of individuals living in conditions of enslavement today as a whole- which is somewhere in the region of 21 million- it would be the 57th most populous country in the world. For comparison, Australia ranks 53rd. Of these 21 million men, women and children, just under a quarter of this population are currently enslaved as a result of the sex trafficking trade; that’s half a million more people than those that live Sydney. Most damning of all, only 2.5% of all Australian Federal Police investigations on the last 15 years have resulted in convictions- that’s seventeen out of seven hundred. Make no mistake, slavery is as much a part of our world as we are. So why does it seem to get constantly overlooked?

For starters, modern slavery fails to fit our preconceived notions of what the history books tell us slavery looks like. Slavery has evolved along with our society. Broadly speaking, modern slavery refers to the deprivation of liberty through threat of force or coercion of an individual for the purposes of exploitation or third-party profit of any form. Human trafficking, including those associated with drugs, sexual exploitation and forced labour, falls under the umbrella term of slavery, which hails from Article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, to which Australia is a signatory. Put simply, slavery today is more subversive, more insipid and subsequently more difficult to find than the blatant chattel practices of previous centuries.

Consequently, the subversiveness and practical nuances of modern slavery makes it a difficult target in politics for two reasons. Firstly, it makes modern slavery extremely difficult to monitor and safely intervene in given the inherent vulnerability of victims, which in turn means attracting respectful public attention to the issue is a particularly sensitive proposition. Secondly, and more practically, human trafficking by definition occurs across sovereign-state borders. As such, a government hoping to legislate against modern slavery has to contend with half of the issue being beyond their control. For Australia, a net receiver of slaves mostly from the Pacific and South-East Asia, the government can typically only intervene in trafficking once the person has already been enslaved.

Often, these conditions render victims without access to legal services or protection. A telling example of this issue hampering anti-slavery efforts by governments was uncovered by the Sydney Morning Herald in 2015, who reported widespread underpayment of sponsored migrant employees in 7/11 stores. To further confuse the matter, these victims often worked extra hours to supplement lost income, which in turn prevented them from seeking legal assistance out of fear they had breached their visa work restrictions. The compounding effect of modern slavery on our legal system are three-fold; not only do whistle-blower victims face deportation from the legal authorities that are supposed to protect them, they also receive no guaranteed temporary assistance once a visa breach is declared. As a result, in a final catch-all, should victims leave Australia, taking legal action against abuse becomes effectively impossible unless they can find a way to return- something one could confidently assume would be economically difficult in the position of a modern slavery victim.

The important takeaway here is that modern slavery is deeply complex, and inherits the international and cross-jurisdictional challenges of international law enforcement faced today by governments that did not exist in a time of Empires. There is nothing that makes modern slavery an attractive target to a government seeking quantifiable policy outcomes to take to an election; there is no easy fix, no root cause, and no consistent manifestation. In driving the point home, its arguable that little attention is paid to modern slavery because it’s just too big and too hard to deal with.

So where does an Australian Modern Slavery Act fit into this landscape of disinterest? The difficulty in dealing with modern slavery hasn’t stopped potential solutions being offered by policy makers across the world, and arguably none have come as close as the United Kingdom’s Modern Slavery Act (MSA), which came into effect last year. UK legislation on modern slavery is relevant because, like Australia, the UK is a net receiver of trafficked individuals from geographic neighbours (and that it seems eerily similar – read, almost identical – read, functionally indistinguishable - from the Department’s media release). The UK’s MSA effectively serves as a supplement to existing (and soon outgoing) EU labour regulations, taking into account the overwhelming inward flow of the modern slave trade to the UK. What makes the legislation notable is how the MSA has broken through partisan lines by taking an unprecedentedly broad approach to dealing with the issue of Modern Slavery.

The MSA has seven parts but can be simplified into three broad areas in line with the UN Protocol; protection, suppression and prevention. In protecting victims, the Act rewrote legislation criminalising human trafficking and slavery, ensuring harsh punishments and a clear definition. Given Australia’s current legal authority on modern slavery, Division 271 of the Criminal Code Act 1995 (Cth), falls under the title of ‘Trafficking in Persons and Debt Bondage’, despite also including all other forms of slavery- including sexual exploitation- a simple reform to efficacy Australian legislation would not go without its merits of improving simplicity, clarity and access.

Furthermore, the Act consolidates victim support schemes that provide compensation to slavery victims in the UK, providing an avenue to civil legal action. This addresses the catch-all, ‘double jeopardy’ effect of existing Australian legislation, of which the Federal Government is the only Australian Parliament that has failed to establish a compensation scheme for victims of trafficking and slavery, despite the individuals that come under their jurisdiction- particularly visa-holders or illegally smuggled immigrants- being the most vulnerable. It is also worth noting that current Australian legislation therefore fails to comply with international standards under the Protocol.

In addition, the UK committed funding for coordinated task forces to help suppress modern slavery. Particularly given the overlap of AFP and state police in Australia, the adoption of an MSA would promote cooperation, and present itself as a quantifiable effort to improve the existing 2.5% conviction rate. At its most tedious, the MSA would at least ensure compliance with international standards for anti-slavery protocols and provide an avenue for improving its efforts in combatting human trafficking.

Up to this point, the MSA is a pretty conventional approach to tackling slavery and fails to deal with the international and cross-jurisdictional implications of human trafficking. The MSA’s unique response to this issue is perhaps also its most radically different element, requiring businesses with an annual turnover exceeding £36 Million to report on their efforts to ensure that human trafficking and slavery does not occur at any point in their own business and their supply chains. Rounding down to the nearest 50 Million, you’re looking at businesses operating with a turnover above AUD$50 Million (sounds pretty straightforward). In practice, the theory behind the MSA is that by influencing international supply chains through exercising authority over domestic demand driving slavery, the UK can counteract current jurisdictional issues such as those faced in Australia.

This does not mean the MSA is perfect. It is too early to tell if the legislation will have any tangible effect on the modern slave trade in the UK, and while the £36 Million cut-off is a regulatory decision, and can be reduced without having to amend legislation, it ought to bring into question the degree to which the MSA effectively addresses human trafficking and slavery. While large businesses such as 7/11 may still be held accountable despite the presence of a cut-off, it can easily be argued that potential sponsoring entities for exploited labour fall well below what appears an arbitrary figure. Most damningly, there is no clear route for enforceability in the legislation to hold businesses accountable to engaging in efforts to prevent exploitation. All of this points to the possibility that the UK MSA may well develop over time into a well-meaning piece of legislation with a complete lack of enforceability concerning anti-slavery efforts from businesses, and so while the MSA holds promise in encouraging a culture in tune with the presence of slavery, it still needs fine tuning to be as effective as the legislative model could be.

All things considered, an Australian Modern Slavery Act faces three potential options to deliver to the Parliament and the Australian people. It may choose to remain hidden in the DHA archives and leave a persistent political hot-potato alone until action is forced upon Canberra- a course of action which, assuming the current trend, would provoke little public backlash, if any. Conversely, it may choose to run with the UK framework, and contend with hardened lines of opposition concerning its lack of enforceability; or finally, the Government may choose to tweak the MSA model to deliver its full potential for delivering accountability and responsibility in dealing with modern trafficking and slavery, at the ever-present risk of political naïveté.

Whatever the outcome, the implication as to how our society views itself with regards to exploitation, slavery and trafficking will be telling.

Disclaimer: The views presented in this article represent only the views of the author.